Rourke v. United States Fidelity & Guaranty Co.

• Decision Date: 08 March 1939
• Docket Number: 12524.
• Citation: 1 S.E.2d 728,187 Ga. 636
• Court: Georgia Supreme Court
• Parties: ROURKE v. UNITED STATES FIDELITY & GUARANTY CO. et al.

1 S.E.2d 728

187 Ga. 636

ROURKE v. UNITED STATES FIDELITY & GUARANTY CO. et al.

No. 12524.

Supreme Court of Georgia

March 8, 1939

Syllabus by the Court.

1. An award of the Industrial Board, based upon an agreement between an injured employee and his employer, providing for compensation under the terms of the workmen's compensation act for a specific injury sustained by the employee, is, in the absence of fraud, accident or mistake binding on the parties, and the employee can not, after the expiration of the time allowed for an appeal, and more than four years thereafter, have the award set aside and obtain an additional award, solely on the ground that the award was based on an erroneous construction of the provisions of the act and did not provide sufficient compensation for the specific injury sustained, as correctly set forth and described in such agreement.

2. Under a proper construction of the workmen's compensation act, a minor employee, 18 years of age or over, not mentally incompetent or physically incapable of earning, in whose favor an award of compensation has been made under that act may, subject to the approval of the industrial board, enter into an agreement with his employer or insurance carrier for a lumpsum settlement of such award, where the weekly payments under such award have been made for not less than 26 weeks.

a These provisions are not special laws, in conflict with existing general laws in reference to minors and their ability to contract, as embodied in Code, §§ 20-201, 74-104, 79-208, and are therefore not unconstitutional as violative of art. 1, sec. 4, par. 1 of the constitution of this State (Code, § 2-401).

3. Nor are such provisions unconstitutional as violative of either art. 1, sec. 1, par. 2 (Code, § 2-102), or art. 1, sec. 1, par. 3, of the constitution of this State (Code, § 2-103), and similar provisions of the constitution of the United States.

4. Upon an appeal being taken to the superior court the Industrial Board 'shall * * * cause certified copies of all documents and papers then on file in their office in the matter, and a transcript of all testimony taken therein, to be transmitted with their findings and order or decree to the clerk of the superior court to which the case is appealable.' Code, § 114-710. By virtue of this provision, it was proper for the Industrial Board to transmit certified copies of all papers on file in its department to the clerk of the superior court, although such papers were not physically in the presence of the director at the hearing and were not formally introduced in evidence.

Paul T. Chance, of Augusta, for plaintiff in error.

Bussey & Fulcher, of Augusta, for defendants in error.

REID Chief Justice.

On August 14, 1933, Cecil Rourke, the plaintiff in error, suffered an injury arising out of and in the course of his employment with the Merchants' Bakery, as a result of which his right hand was amputated 3 1/2 inches above his wrist. Within fourteen days after the accident he entered into an agreement with the insurance carrier granting him compensation for the loss of a hand as provided in Code, § 114-406(l), and also for the partial loss of his arm in accordance with Code, § 114-406(r). This agreement was duly filed with and approved by the Industrial Board. More than twenty-six weeks thereafter, the claimant applied to the insurance carrier and the Industrial Board for a lump-sum settlement of the award, and after approval of the Industrial Board the insurance carrier paid claimant an amount 'equal [to] the total sum of the probable future payments, reduced to their present value upon the basis of interest calculated at five per centum per annum.' Code, § 114-417. The claimant executed a full and complete release. On March 26, 1938, the claimant, through his attorney, requested a hearing by the Industrial Board to determine the legality of the award and the settlement thus made. The hearing was granted, and the award and settlement were upheld. The judge of the superior court affirmed the rulings of the Industrial Board, and exceptions are taken in this court.

1. On the merits of the amount of the award, counsel for claimant contends that compensation should have been awarded as for the loss of an arm, that is 50 per cent. of claimant's weekly wage for 200 weeks, instead of for the loss of a hand and partial loss of the arm, as was done. The administration of the workmen's compensation act is vested in an administrative board. Gravitt v. Georgia Casualty Co., 158 Ga. 613(2), 123 S.E. 897. It is expressly empowered to hear and determine claims arising under the provisions of the act, and, as between the parties, its award has the same effect as a judgment rendered by a court of competent jurisdiction. See Code, §§ 114-706, 114-707, 114-711, 114-715. Where a hearing is had and an award made in favor of the claimant, if the claimant be dissatisfied with the amount of the award, his remedy is by way of appeal as provided in Code, § 114-708 et seq. Where no appeal is taken the award is conclusive and binding, and in the absence of fraud, accident, or mistake, the claimant may not thereafter have the same increased, except upon a change in condition. See United States Casualty Co. v. Smith, 42 Ga.App. 774, 157 S.E. 351; Home Accident Ins. Co. v. McNair, 173 Ga. 566, 161 S.E. 131; London Guarantee & Accident Co. v. Boynton, 54 Ga.App. 419, 188 S.E. 265; Lumbermen's Mutual Casualty Co. v. Lattimore, 165 Ga. 501, 141 S.E. 195; Aetna Life Ins. Co. v. Davis, 172 Ga. 258, 157 S.E. 449; Sutton v. Macon Gas Co., 46 Ga.App. 299(2), 167 S.E. 543; Jones v. American Mutual Liability Ins. Co., 48 Ga.App. 351, 172 S.E. 600; Hicks v. Standard Accident Ins. Co., 52 Ga.App. 828, 184 S.E. 808; United States Casualty Co. v. Smith, 34 Ga.App. 363, 129 S.E. 880; Globe Indemnity Co. v. Langford, 35 Ga.App. 599, 134 S.E. 357.

It follows that after the expiration of the time of appeal, the claimant may not bring a proceeding to increase the award, based on the ground that it is erroneous. The workmen's compensation act does not require a hearing before an award can be made by the Industrial Board. Code, § 114-705, provides that if the employer and injured employee shall reach an agreement 'in regard to compensation under this Title,' it shall be filed with the Industrial Board, and 'if approved by the Department, thereupon the memorandum shall for all purposes be enforced by decree or judgment of the superior court, as herein specified.' The approval of an agreement by the Industrial Board has the same effect as an award made after a full hearing. London Guarantee & Accident Co. v. Boynton, supra. The claimant entered into an agreement with the insurance carrier for compensation as for the loss of his hand and also for a partial loss of his arm. This agreement was approved by the Industrial Board. Under a proper construction of the act, even if the award was erroneous for the reason urged, claimant can not now, five years thereafter, attack the award on this ground, and recover additional compensation. The facts presented do not show a change in condition so as to authorize an increase in the award made. It is undisputed that the only injury sustained by claimant was the amputation of his hand 3 1/2 inches above his wrist, and that it was upon this condition that the original award was made. The claimant now claims no additional injury to his arm. It is true that he testified that his arm was of no value, but this conclusion is clearly based on the mere fact that he has lost his hand, and this was as true when the original award was made as it is now.

The ruling here made is not in conflict with Tillman v Moody, 181 Ga. 530, 182 S.E. 906, wherein it was ruled: 'The Department of Industrial Relations is without jurisdiction to approve an agreement for a lump sum settlement of an award of compensation which does not conform to the terms of the Workmen's Compensation Act.' There, the parties disregarded and attempted to set aside the provisions of the act in reference to the making of lump-sum settlements, which this court ruled could not be done even though approved by the Industrial Board. There is certainly a wide difference between an original award of compensation, based upon an agreement between the parties, which may be merely erroneous, and an award of a lump-sum in settlement of an award already made,...